Facebook is facing a class action lawsuit in California state court for the commercial use of children’s names and likenesses without parental consent. The suit stems from Facebook’s “Like” button – specifically, the allegedly unauthorized conversion of users’ “Likes” of Facebookadvertised products and services into endorsements for such products and services – and is based in part on a California law that forbids the knowing use of a minor’s “name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services” without first obtaining consent from the minor’s parent or guardian. The suit raises questions as to whether social media “Likes” constitute advertisements or endorsements.
The complaint alleges that Facebook first encourages the participation of children on its site, and then “markets the names and likenesses of those children for use by advertisers, representing to those advertisers that the use of the name and/ or likeness of the child as an endorsement of the advertiser’s product can increase marketing returns by 400% compared to advertising that does not include an endorsement from the name or likeness of a child.” Counsel for the plaintiffs has stated that Facebook “makes no effort to obtain parental consent” for these uses, contrary to the requirements of California law. Reactions to the lawsuit are mixed; according to MediaPost’s Online Media Daily, some observers believe that the plaintiffs have a strong case, while others feel that “it doesn’t necessarily make sense to treat ‘likes’ on Facebook as ads” and that the outcome of the suit is difficult to predict, particularly given that the applicable law went into effect well before the advent of social media.